Tag: Constitution

Last week the Supreme Court issued its ruling in Carpenter v. United States, with a five-member majority holding that the government’s collection of at least seven days-worth of cell site location information (CSLI) is a Fourth Amendment search. The American Civil Liberties Union’s Nathan Wessler and the rest of Carpenter’s team deserve congratulations; the ruling is a win for privacy advocates and reins in a widely used surveillance method. But while the ruling is welcome it remains narrow, leaving law enforcement with many tools that can be used to uncover intimate details about people’s private lives without a warrant, including persistent aerial surveillance, license plate readers, and facial recognition.

Background

Timothy Carpenter and others were involved in a string of armed robberies of cell phone stores in Michigan and Ohio in 2010 and 2011. Police arrested four suspects in 2011. One of these suspects identified 15 accomplices and handed over some of their cell phone numbers to the Federal Bureau of Investigation. Carpenter was one of these accomplices.

Prosecutors sought Carpenter’s cell phone records pursuant to the Stored Communications Act. They did not need to demonstrate probable cause (the standard required for a search warrant). Rather, they merely had to demonstrate to judges that they had “specific and articulable facts showing that there are reasonable grounds to believe” that the data they sough were “relevant and material to an ongoing criminal investigation.”

Carpenter’s two wireless carriers, MetroPCS and Sprint, complied with the judges’ orders, producing 12,898 location points over 127 days. Using this information prosecutors were able to charge Carpenter with a number of federal offenses related to the armed robberies.

Last week, Senator Ron Johnson (R-WI) introduced the State Sponsored Visa Pilot Program Act of 2017. Senator John McCain (R-AZ) is an official co-sponsor. If enacted, this bill would create a flexible state-sponsored visa system for economic migrants whereby states would regulate the type of visas and the federal government would handle admissions and issue the actual visas. Representative Ken Buck (R-CO) plans to introduce a companion version in the House in the near future.

This is an innovative bill but we have encountered one persistent question from conservatives, libertarians, and others who are sympathetic to the idea of immigration federalism: Is a state-sponsored visa constitutional?

The state-sponsored visa is perfectly consistent with the current migration system. The Johnson-Buck bill does not actually end federal control of migration but it merely creates a visa category whereby the states select the migrants through whatever processes they establish. The federal government is in full control of visa issuance and admission at ports of entry. Thus, states would be acting as sponsors on behalf of migrants whom they represent in their states in the same way that they currently sponsor foreign-born students at state universities and other workers in their capacity as employers.

In 2014, Brandon Fuller and Sean Rust authored a policy analysis for Cato that explored how a state-sponsored visa program could operate in the United States. They wrote a section addressing the constitutionality of such a program:

Historically, the Supreme Court has interpreted Congress to have “plenary power” over immigration, generally giving deference to the political branches of the federal government as an extension of the Naturalization Clause under Article 1, section 8, clause 4, which gives Congress the power “To establish an uniform Rule of Naturalization.”[1] Under current interpretations, this gives Congress the sole power to establish naturalization guidelines. However, Congress can also allow states to be involved in immigration policy in areas besides naturalization, such as managing a state-based visa within federal guidelines. Some immigration policies, with the exception of naturalization, can be partly devolved to the states within a range of powers permitted by the federal government.

The recent case of Arizona v. the United States, which decided the constitutionality of Arizona’s strict immigration laws, reiterates the point that states are allowed to participate in immigration policy and enforcement, but only within the scope permitted by the federal government.[2] In debating the case of Arizona v. United States, Peter Spiro, an immigration law scholar at Temple University’s Beasley School of Law, wrote, “[I]n Arizona, the Supreme Court constricted the possibilities for unilateral state innovation on immigration, both good and bad. That does not stop the federal government from affirming state discretion.” A state-based visa program does just that—allowing states to participate in the selection of immigrants under guidelines permitted by the federal government which is consistent with current interpretations of the Supremacy Clause and the plenary power of the federal government in the matter of immigration.

It is also important to note that U.S. law defines a nonimmigrant visa holder as “an alien who seeks temporary entry to the United States for a specific purpose,” and the federal government may set conditions in accordance with this purpose. For example, in the current immigration system a foreign entrant may be required to be attached to a singular petitioning employer under a number of employer-based non-immigrant visas, such as the H-1B. Like holders of employment-based visas, state-based visa holders would be nonimmigrants with a temporary right to live and work in the United States and an option to pursue permanent residency. As such, the state-based system is simply a variation on the condition being attached to the foreign entrant.

Yesterday, President Trump’s pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime. In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.

One order calls for the creation of a task force on crime reduction. The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled “Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers.” This order is also about exploring new ideas and strategies to “enhance the protection and safety” of law enforcement officers. The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue “through widespread illegal conduct.” Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.

My first choice from the president’s fabulous list of terrific judges – they’re all winners, believe me (no really, solid list) – was probably the judiciary’s twitter laureate, Texas Supreme Court Justice Don Willett, but Judge Neil Gorsuch of the Tenth Circuit was right up there. As you can see by my statement to CNN, I’m pleased as punch with the selection.

There’ll be time enough to analyze Judge Gorsuch’s work, but after reading a stack of his opinions over the weekend, the most salient parts of his judicial record are as follows:

A keen appreciation for constitutional structure as a guarantor of our rights and liberties.

A real devotion to originalism – probably more than the self-described “faint-hearted originalist” Antonin Scalia – and textualism.

Strong support for the freedom of speech and religion, and the First Amendment more broadly.

Skepticism of the administrative state.

Like Scalia, he construes criminal statutes narrowly, so people aren’t convicted and punished without the government’s meeting its evidentiary burden or establishing that it didn’t violate constitutional rights in arresting and prosecuting defendants.

Really, really good writing, which even Justice Elena Kagan has praised.

Gorsuch also maintains a good relationship with Cato and has published a Policy Analysis with us. In short, Donald Trump has managed to pick a nominee who should please everyone other than progressives: social conservatives, libertarians, legal elites, and I imagine the populists who trust him to pick “the best judges.” Left-wing activists are already talking about how Gorsuch is extreme and is anti-women, workers, yada yada – they have to raise money somehow – but I find it hard to see how Senate Democrats will muster 40 votes to sustain a filibuster against someone who was unanimously confirmed in 2006, particularly with a tough 2018 map.

An article cited in the Cato Clips late yesterday caught my eye: “Libertarian Judicial Activism Isn’t What the Courts Need.” Written by Texas attorney Mark Pulliam, a sometime contributor to such libertarian publications as Reason and The Freeman, among others, it was posted at a site called “Southeastern Texas Record” and a day earlier at “American Greatness” (I leave it to the reader to discern what that site is about). The title speaks for itself. As the first named target of the piece, I’m given to respond, briefly. Others, in order of appearance, are Randy Barnett, Clark Neily, Ilya Shapiro, Kermit Roosevelt III, Dick Carpenter, Anthony Sanders, and, by implication (their book, The Dirty Dozen, is cited), Bob Levy and Chip Mellor—a veritable rogues gallery of libertarian legal scholars.

Could we all be wrong? Apparently so. We’ve “devised a novel theory that the Constitution, properly understood, protects a person’s ‘right to do those acts which do not harm others,’” Pulliam argues, “enforceable against the federal government and the states,” and “it is only judges who get to decide whether a particular law is justified constitutionally.” What’s worse, we’re urging President-elect Trump to appoint adherents of this “fanciful theory” to the Court.

When Simon Tam formed an all Asian-American rock band, he knew it needed a name that would capture the band’s identity and ethnic pride. He chose “The Slants” to, in his own words, “take on these stereotypes that people have about us, like the slanted eyes, and own them.” The Slants knew they might have some critics, but they weren’t expecting that one would be the U.S. Patent and Trademark Office (PTO), which punished them for their naming choice by denying their trademark application.

The PTO acted under a provision of the Lanham Act (the federal trademark statute) that bars the registration of any trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” After a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld this denial, the full court reheard the case and reversed, striking down the disparagement clause as violating the First Amendment. The case is now before the Supreme Court.

When the Framers designed our federalist system, they assumed that the federal government would be limited to those powers actually enumerated in the Constitution and that it would exercise those powers only when authorized by statute. Further, to give the states some say in the drafting of these statutes, one half of the federal Congress—the Senate—was elected by the state legislatures themselves and designed to reflect the interests of the state governments.

Today, none of these elements of our original design remain. The Supreme Court has allowed the federal government to control nearly limitless activities, supposedly as an exercise of its power to regulate interstate commerce. The executive branch acts as its own de facto legislative branch, “interpreting” statutes through executive actions and agency rulemaking to unilaterally give itself the powers it wishes to exercise. And after the passage of the Seventeenth Amendment, senators are now elected by popular vote, meaning there is no longer any direct link between the state and federal governments. The result of these three changes is that states have less power than ever – and there’s not much they can do about it.

To solve that problem, Representatives Rob Bishop (R-UT) and Cathy McMorris Rodgers (R-WA) recently introduced the “Re-Empowerment of the States Amendment,” a proposal that would allow two thirds of the state legislatures to repeal any “Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States.”

Importantly, this amendment would not allow states to repeal the text of statutes that have duly passed both houses of Congress. This isn’t an amendment to change the system of bicameralism that the Framers designed; instead, it’s an amendment to restore the checks on the executive branch that existed before the massive expansion of the administrative state. As the amendment’s creator David Hemingway has explained, “The practical result would be to enhance the power of Congress since it would encourage the president to work with Congress rather than govern by issuing executive orders.”